Macron v. Le Pen on Immigration, Asylum and Integration

After lots of excitement in the final weeks leading up to the French election, Emmanuel Macron and Marine Le Pen will proceed to the runoff, a result that was widely predicted and yet produced significant surprise when it actually came to be, given the current distrust in the accuracy of polls.

When it comes to immigration, the differences between the top two candidates are significant, although they are not as diametrically opposed to one another as, say, Le Pen and Jean-Luc Melenchon. While Le Pen offers a vision of a dramatically altered immigration regime for France, Macron essentially makes some measured tweaks to the status quo, focused on making the country a more attractive immigration destination for certain types of people and making the asylum process more efficient. Let’s see where the candidates come down on some of the big questions surrounding immigration, asylum, and integration.

Immigration: Invite more students and skilled labor, or reduce across the board?

Le Pen’s overall approach to migration is restrictive, although she doesn’t eradicate it totally as she has suggested in some speeches. She promises to reduce legal immigration to a total of 10,000 people per year, and change the law to restrict family reunification and acquisition of citizenship through marriage or birth in France. She also wants to crack down on irregular as well as EU immigration by leaving the Schengen zone and reestablishing borders, while bolstering border forces and customs agents.

Macron does not get into many specifics about his intentions on all forms of legal immigration, leaving us to assume that he wants to maintain the law as it stands on issues like the acquisition of citizenship and family reunification. (In fact, he asserts that “fantasies” about family reunification are overblown: only 12,000 received family reunification visas in 2015, and of these the majority received them under international rather than domestic legal commitments.)

Instead, Macron focuses on students and other types of “knowledge” migration. He would introduce new types of visas for professionals, scientists, and creators while streamlining existing procedures to make it easier for Masters students, artists, entrepreneurs and other highly qualified people to come to France.  Once they get there, he also wants to make it easier for them to access the labor market.

Asylum: Incredibly restricted, or restricted?

Both Le Pen and Macron in some way want to bolster the existing asylum regime to make it faster (and easier to deport people who do not receive asylum.) Le Pen would recruit 6,000 new border officers over five years, alter the asylum system to only take place in French consulates but not on French territory, and expel everyone else. (As we have noted, as stated these two last points likely violate French domestic and international obligations.)

Macron advocates for a “dignified” system that is nevertheless “inflexible” with people who are not entitled to remain. This inflexibility is reflected in a much faster decision process: decisions on asylum applications should be reached in 8 weeks (it currently averages around 11 months) and judgments on appeals should take 6-8 weeks. In this same proposal, Macron implies (without stating outright) that he prefers people seeking asylum to remain in detention to help speed up the process.

Having the applicants on site greatly reduces the processing time (removal of unavailability and sickness, which involves one quarter of the cases, removal of travel costs) and eliminates the time and notification disputes.

This notion could be problematic under European and international law, so here we need a little detour to briefly discuss the legality of mass detention of people seeking asylum.

As the United Nations High Commissioner for Refugees (UNHCR) lays out in their Detention Guidelines, detention is an extraordinary measure that must be proscribed by law and justified by some legitimate purpose, not merely for convenience in speeding up asylum application proceedings.

Detention can only be exceptionally resorted to for a legitimate purpose. Without such a purpose, detention will be considered arbitrary, even if entry was illegal.

The Council of Europe concurs, saying in a recommendation on the subject of detention that people seeking asylum, although non-citizens, are protected by the European Convention on Human Rights: “no one shall be deprived of his liberty save in exceptional cases and in accordance with a procedure prescribed by law, as stipulated by Article 5.1.b. and f. of the European Convention on Human Rights.”

A recent case at the European Court of Justice (2016) reiterates these principles and applies them directly to EU member states like France, narrowing the scope of justification for the detention of people seeking asylum to cases where the individual him or herself (and not just his or her status) presents a danger to public order or national security. Below, part of the Court’s ruling from JN v. Staatssecretaris voor Veiligheid en Justitie:

“…keeping an applicant in detention under point (e) of the first subparagraph of Article 8(3) of Directive 2013/33 is, in view of the requirement of necessity, justified on the ground of a threat to national security or public order only if the applicant’s individual conduct represents a genuine, present and sufficiently serious threat, affecting a fundamental interest of society or the internal or external security of the Member State concerned.”

Detaining all people seeking asylum (including, presumably, children) so that their applications can be handled more quickly might infringe on international law, and Macron may be called upon to give a different justification for such a policy, or to restrict it to certain types of people (such as, e.g., people considered flight risks or threats to public security.)

Integration: Everybody just speak French

One place where Le Pen and Macron both concur is on the need of newcomers and nationals to learn French. Macron would encourage this by giving every newcomer to France the “entitlement” to learn French to the level of B1. In practical terms though, this isn’t so much a right as a requirement, since he proposes making this language acquisition a condition of a residence permit.

Le Pen rejects the concepts of multiculturalism and prefers the standard of “assimilation” over integration. To this end, she wants to strengthen ties with French-speaking communities across the world, ensure that French is spoken in universities, and “ensure primary schools spend half their teaching time on teaching spoken and written French.”

An imbalance in the candidates’ focus

In sum, the major difference between Le Pen and Macron is their focus. Le Pen has made restricting immigration and asylum one of the cornerstones of her campaign, while Macron is far more focused on economic and social considerations. Will his lack of focus cost him at the polls? Or will French people reject the kinds of radical, across the board changes that Le Pen is running on? We will find out in two weeks.

Sources and Further Reading
Marine Le Pen’s 144 Presidential Commitments (English) (PDF)
Emmanuel Macron’s Immigration and Asylum Proposals (French)
Detention Guidelines. UNCHR, 2012.
Rec(2003)5 of the Committee of Ministers to member states on measures of detention of asylum seeker. Council of Europe, 2003.
J. N. v Staatssecretaris voor Veiligheid en Justitie Judgment, Court of Justice of the European Union, 2016.
Detention of Asylum Seekers: The First CJEU Judgment -Steve Peers on EU Law Analysis Blog.
Images: Macron via Ville de Nevers on Flickr, http://bit.ly/2plFT1E, (CC by NC-SA-2.0), Le Pen via Blandine Le Cain http://bit.ly/2qa7K4Q (CC by 2.0)
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A radical departure? Jean-Luc Mélenchon’s Party on Migration and Asylum

With mere days until the first round of the French presidential election, the polls have evened out to the extent that it looks a four-way race (within the margin of error), with centrist Emmanuel Macron taking a narrow lead and closely followed by far-right Marine Le Pen, center-right Francois Fillon, and far-left Jean-Luc Mélenchon. Sunday’s vote will most likely narrow down the race to two candidates, who will face off in a runoff election two weeks later.

There is an upside to the fact that the election is so wide open: practically the entire range of possible views on migration are represented! This is unusual, especially in comparison to the more common scene: candidates who say the same thing on migration policy in different ways, while heavily favoring the status quo.

We’ve already summarized where the major candidates stand on migration and asylum, and examined Le Pen more closely, as she has campaigned continuously and heavily on the theme of restricting immigration. But far-left candidate Jean-Luc Mélenchon deserves a closer look as well. He and his brand-new party, Unsubmissive France, have been steadily gaining in the run-up to the election, and his proposals on immigration would present as much of a departure from current French policy as Le Pen’s.

The Business of Xenophobia

In Unsubmissive France’s in-depth explanation of their migration policy, (not written by Mélenchon himself, we should note) the authors offer an anti-capitalist critique of the European migration crisis. The European Union, by creating a migration policy based on borders and security have incentivized both the exploitation of migrants and the fear of them, they write.

“…[S]ecurity policies lead to the development of a “business” of fear and xenophobia by giving the transnationals of the security industry the opportunity to benefit from a new financial windfall at European level. These policies keep migrants in a state of permanent insecurity, in particular encouraging them to put their available work force of employers who want to benefit from exploitable labor, and place them at an inability to meet their most basic rights.”

Given this diagnosis of the problem, the party proposes numerous EU-wide policies that would solve it: work for peace and avoid military deployments, end the imposition of unfair trade deals that destabilize other countries and regions, work on adequate development and climate change policy that will make home countries more livable, and people less ready to leave them for Europe.

These policies have the advantage of being unique among French candidates and speaking to larger global and economic issues. A major downside is that they are not policies that can be implemented by Mélenchon if elected. He can work to promote these views at the European level, but as one member state, even an influential one, he cannot meaningfully promise voters the ability to enact an entirely new EU security or trade policy (and cannot accomplish these by threatening to leave.) In that sense, these proposals are unrealistic, but give an idea of the general worldview of the party: anti-capitalist, pacifist, labor-oriented.

Unraveling migration laws and trade agreements

The party goes on to elaborate a plan that would fundamentally alter the legal situation of migrants in France, from acquisition of citizenship to family reunification to asylum. Many of the proposals aim to erase restrictions now existing, while others propose new laws or policies.

For instance, the party calls for France to:

  • Decriminalize illegal residence and end detention of immigrants, especially children
  • Break with European directives and repeal the successive laws that aimed to restrict the right of asylum in France,
  • End free trade agreements and replace with protectionist solidarity

In effect, Melenchon is calling for “amnesty” for undocumented migrants and for authorities to stop enforcing immigration laws. This could, theoretically, be achieved but would require the dismantling of an entire system created to apprehend, detain, and deport undocumented migrants, which employs many people and is connected to numerous criminal and civil code provisions. It would no doubt create some upheaval and be difficult to get past the legislature.

As for the idea to break with European directives, this could be less tricky, depending on how it is operated. Many European directives applying to asylum regulate “minimum standards” for the asylum process in member states. In other words, they regulate the least the state can do in certain situation but do not prevent that they do more. In fact, they deliberately allow for this possibility. For instance, the 2013 EU Asylum Directive in article 5 states “Member States may introduce or retain more favourable standards on procedures for granting and withdrawing international protection, insofar as those standards are compatible with this Directive.” So if Melenchon “breaks” with EU directives in a way that offer more protection to asylum seekers, it will probably not be a legal problem at the European level.

Ending free trade agreements unilaterally, on the other hand, will. The EU generally negotiates as a block on trade agreements and is currently implementing deals with numerous countries and regions, such as one with West Africa, East Africa, and Canada. Could France withdraw from these and replace them with “solidarity” or development schemes?

The answer is probably no, unless they withdraw from the EU as Britain plans to do. Trade policy is an area that is firmly within the scope of exclusive EU competences- meaning only the European Commission can negotiate trade deals with other countries or regions, and individual member states can’t alter these or exit them. This also applies to foreign direct investment. So without withdrawing from the EU customs union more generally, which as Brexit has shown is no small undertaking, France will probably not easily extricate itself from EU trade policy.

Granting More Rights

Unsubmissive France has more in their program than just repealing laws and treaties. They also have some positive legal proposals with ranging levels of realism:

  • Restore jus soli citizenship rights for people born in France
  • Allow asylum seekers to work while they wait for their cases to be reviewed
  • Allow for “flexible” return scenarious, with fluidity between France and other countries and ability to return elsewhere without losing residence rights

“Our collective mission is to respect the human dignity of migrants and their fundamental right to family life,” Unsubmissive France writes, and their policy proposals support this migrant-centered mission and present new ideas that make France more welcoming both to new immigrants and for people already living in France who are not citizens. 

The introduction of jus soli citizenship would make France the first country in Europe to have an US-style citizenship law, wherein being born in France entitles a child to automatic citizenship. This idea, in combination with decriminalization of undocumented migrants, would mean that multi-generation families without residence rights would be a thing of the past. This proposal would represent an extension of the form of jus soli citizenship already in place under the French civil code, which was detailed in our article on Le Pen (who, in contrast, wishes to eradicate Jus soli citizenship.)

The priority of workers rights and the value that UF places on work is visible from policies granting work permission to asylum seekers and people who wish to return to other countries for temporary periods to work. These promises are a little vague, and one can’t help but wonder whether proposals like these would encounter resistance from powerful French labor unions. But as with many of these proposals: its usually easier under the law to give new rights than to take them away.

Radical, and Sometimes Unrealistic

Overall,  Melenchon’s party proposes radical changes to the status of migrant under the French system that could be difficult to get through the legislature, but overall comport with their own constitution and international commitments. They propose ideas that would be a major change from how things are done now, but do not necessarily break with French values as embodied in the constitution- in many cases they just extend them further. 

Where UF’s plans are weakest are when they refer to EU-wide activities, like trade. Its not impossible for France to follow Britain out of the EU in order not to be bound by EU-wide trade agreements and other commitments, but this would make it far more difficult too simultaneously influence EU policy on distribution of asylum seekers or military engagements in other countries. And organizing a “Frexit” referendum would require Melenchon to spend valuable political capital that could otherwise be used to reorganize immigration law in the way he proposes.

For pro-immigrant voters, Melenchon’s policies have lots of appeal. But voters will have to weigh this against the overwhelming ambitiousness of UF’s plans, to consider whether one candidate can really achieve so many massive changes at the same time without setting priorities.

Sources and Further Reading
Respect Migrants, Regulate the Causes of Migration. L’Avenir en Commun, Migration Program of Unsubmissive France (in French.)
How France’s Presidential Election could break- or make- the EU. The Guardian. (April 2017)
DIRECTIVE 2013/32/EU (Common procedures for granting and withdrawing international protection). Official Journal of the European Union. (2013)
The EU’s Bilateral Trade and Investment Agreements- Where are we? European Commission (2013).
Trade- overview. European Commission website.
What is Trade Policy? European Commission website.
Le Pen’s Promises on Immigration and Asylum: A Closer Look. Migration Voter (April 2017)
Cover image via Pierre-Selim on Flickr, http://bit.ly/2pYjgzr. (CC by-SA 2.0)

Is the “Trump era” of immigration policy starting to take shape?

Someone who voted for US President Donald Trump on the basis of his promises to get tough on immigrants and refugees could be forgiven for being a bit disappointed some 80 days into his administration. Mexico does not seem any closer to paying for a wall, the “Muslim ban” failed to pass legal muster (as MigrationVoter predicted), and Trump seems to have abandoned, at least for the moment, promises to crack down on funding for sanctuary cities and overturn DACA. (This last one is a real tough one to swallow for anti-immigration advocates. As Mark Krikorian of Center for Immigration Studies writes on his blog, he expected to be disappointed, but not “for Trump to break an explicit promise regarding his headline issue on the administration’s first business day in office.”)

Past disappointments aside, yesterday gave some signs to advocates against immigration that Trump has not abandoned all of his anti-immigrant promises.

First, Attorney General Jeff Sessions, himself a well-known advocate of restrictive immigration policies during his senate years, delivered a speech to border enforcement in Arizona intended to outline coming changes to the immigration and border enforcement system.

For those that continue to seek improper and illegal entry into this country, be forewarned: This is a new era. This is the Trump era. The lawlessness, the abdication of the duty to enforce our immigration laws and the catch and release practices of old are over.

Sessions announced two types of changes: 1) new recommendations to federal prosecutors mandating prioritization of certain types of crimes, 2) reforms to immigration courts.

New Recommendations to Federal Prosecutors

The new recommendations will require federal prosecutors to consider filing additional criminal charges against undocumented immigrants they capture, including: transportation or harboring of immigrants, fraud and aggravated identity theft (if they uncover forged identity documents) assault on a federal officer, and felony re-entry.

⇒ So what does this really mean? Sessions is essentially instructing federal prosecutors to stack charges against undocumented immigrants as high as possible. If any felony charges stick, that person will be labeled a criminal illegal alien, which as we know, is the group this administration has promised to target for deportation. By pushing for more felony convictions, they widen the number of people who can be considered “criminal aliens” and can make it more difficult or impossible for these people to ever return to the US.

Since these are recommendations, it is obviously at the discretion of prosecutors to push for multiple counts against undocumented migrants in their jurisdiction (and each count takes time and evidence to back up and litigate.) So to ensure that no prosecutors are tempted to ignore these guidelines out of disinterest or convenience, the DOJ has thrown in an additional component: all 94 district attorney’s offices (not just those from border areas) must now appoint a Border Security Coordinator – to headline the efforts against undocumented immigrants. If this is someone’s entire job, they are certainly more likely to prioritize the DOJ’s recommendations and try to convict undocumented immigrants of as any crimes as possible.

Changes to Immigration Court

Sessions announced a new streamlined procedure to appoint more federal judges to immigration benches, with the goal of hiring 50 this year and 75 next year to help reduce the backlog of immigration cases. In addition, all immigrants apprehended at the border will now automatically be sent to detention centers, where judges will directly come to them to decide their fates. For this, he promises to hire 25 new judges. (Note: This backs up an earlier memorandum from Department of Homeland Security calling for detention for all apprehended immigrants and more judges and officers, but it still isn’t clear whether this changes Trump’s federal hiring freeze for other kinds of supporting employees judges may need.)

⇒ So what does this really mean? People on both sides of the immigration debate agree that there is a need for a higher number of qualified immigration judges to ensure that people in immigration detention and awaiting decisions on asylum claims can have their claims adjudicated more efficiently. A “streamlined” procedure for hiring raises eyebrows, in that some may question whether it will be possible to get the best-qualified candidates to judge incredibly complex immigration cases in an abbreviated procedure. Given that under the existing system judges have faced criticism in the past, who knows whether or not this will be a downgrade. We’ll have to wait and see on that one.

The potentially more interesting aspect is the 25 new detention center judges. Unlike criminal charges, immigration offenses do not typically entitle the accused to a lawyer. Having adjudication take place directly at the detention center decreases the likelihood of an individual being aware of their rights, such as the possibility of seeking asylum or applying for temporary protection or a special visa (like Special Immigrant Juvenile Status.)

It also raises concerns about the circumstances of detention. Automatic detention for everyone would presumably include children, and there is some question to the legality of this under international law (see, for instance, here and here.)

Newcomers to DHS from the Anti-Immigrant Community

Aside from Sessions’ very clear statements yesterday in Arizona, we received another hint this week at the Trump administration’s intentions to get tough on immigration. The Department of Homeland Security hired two high-profile advisors linked to the group FAIR and think tank Center for Immigration Studies. Both organizations were founded by the far-right anti-immigration activist John Tanton, and support policies like an end to birthright citizenship and heavily reduced legal immigration, as well as much stricter enforcement of existing laws.

According to the DHS spokesman, as reported by CNN Jon Feere, formerly of CIS, has been hired as an advisor to the director of ICE. Over at Customs and Border Protection, Julie Kirchner, the former executive director of FAIR, has been hired as an advisor to the commissioner. We’ll take a deeper look at the implications of these choices later in the week, but for now its worth noting that Trump’s once stalled plans on immigration seem to be moving along once more, and their direction is quite clear.

Sources and Further Reading
Injunction against Travel Ban- Granted (Hawaii et al v. Trump) US District Court of Hawaii, March 2017
Foreign Minister said Mexico not paying for wall- Mark Rubio on ABC NEWS, April 2017
Sanctuary City list on hold – Washington Times, April 2017
Declined Detainer Outcome Report- Suspended, Immigration and Customs Enforcement
Will Trump go forward with a Muslim Ban, and if so, how?” MV, Jan 2017
Is Trump going to cancel DACA or not? Mark Krikorian, CIS, Jan 2017
Sessions on immigration– OntheIssues.org
Full remarks of Attorney General Sessions, US Dept. of Justice, April 2017
DHS Memo on Implementing Border and Enforcement Policies, DHS, Feb. 2017
Presidential Memorandum Regarding Hiring Freeze, White House, Jan. 2017
Hard-line anti-illegal immigration advocates hired at 2 federal agencies, CNN, April 2017
(Image via Gage Skidmore on Flickr, http://bit.ly/2oXE0e8, (CC by SA 2.0)